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  • The Principle Of Intolerable Mandates

       January 26, 2005

    On the daily link page (which should be a regular visit for everyone, as far as I'm concerned), we learned yesterday that a firm in Michigan fired all of their employees who smoke.

    Effective January 1, employees of Weyco Inc. would be subject to termination if they smoke, regardless of when they actually smoke. After work, at home, it doesn't matter...they'd be fired. And to enforce this policy, the company compelled their employees to take a test which would expose the smokers (I'm thinking they hired an ex-smoker to sniff everyone's breath). An employee quit before the test was administered, and a few others refused to take the test and
    were fired on the spot.

    Why the draconian measures? Because the company's founder didn't want to pay higher health insurance premiums for the people who smoke.

    Now, on this issue it's easy to be torn. On the one hand you have a private company. I'm a big fan of private companies. I think they should be allowed to hire whomever they want, and that goes far beyond smokers/nonsmokers. The way I see it, if a person puts up his own money to form a company, that guy gets to call the shots. After all, it's his money at stake, and if he wants to hire someone less qualified on the basis of some vacuous criteria...hey, it's his dime.

    But on the other hand we have the rights of the individual. I'm a big fan of individual rights, too. I figure if you're doing something that's legal and on your own time, who cares what other people if other people should even care. And yes, I lump smoking into all of that (please don't bother with the arguments that smoking effects other people and should be banned on that basis...that's a different topic for a different post). Bottom line here, if a person is doing something in private that doesn't have an effect on his professional or public life, I don't see why anyone should care (I also don't think anyone should be forced to know what he does, but again...different topic for a different post).

    So in these situations where I have sympathies on both sides of the debate, I find it useful to apply John Tant's Principle Of Intolerable Mandates. The principle states that when two parties have a conflict created by the reasonable exercise of their rights, the party which would suffer the most tolerable infringement must be the party responsible for ending the conflict.

    To put that in more plain language, remember a couple of years ago when Natalie Maines and the Dixie Chicks spouted off in England about how they were ashamed of President Bush? Their record sales dropped like Michael Moore dropping a low-carb burrito. Listeners called their local radio stations and demanded they stop playing Dixie Chicks songs, and the radio stations complied (the customer is always right!). Well, along come the complaints that the 1st Amendment right of Maines was being violated. Applying the Principle Of Intolerable Mandates, we see that on one hand Maines had every right to say what she did....but the public had every right to listen to what they wanted to hear. At the end of the day, forcing the public to listen to something they didn't want to hear (and forcing radio stations to play something they didn't want to play) is more intolerable than simply having Natalie Maines stay away from political talk that would offend her customers.

    And so it is here. Yes, smoking is a legal activity. Yes, we'll assume it doesn't effect one's work performance if one smokes on one's own time. But until we become a communist country, no one has a right to work at a specific firm (and for that matter, a right which compels another to act against his will isn't exactly a right anyway). In sum, forcing Weyco to employ these people is more intolerable than simply having these smokers find another job. And if it's true that health care premiums are more expensive for smokers than non smokers, it becomes even more clear. If Weyco doesn't want to spend the money, even if it is on something shortsighted like the additional premiums of 20 employees, then that's their windmill, not ours.

    Or for that matter if Weyco wants to play Mary Worth and meddle in the lives of their employees...again, it's not like the employees are being forced to work there. Yes, I see how ridiculous the statement on Weyco's website is:

    Weyco Inc. is a non-smoking company that strongly supports its employees in living healthy lifestyles.

    Supports? Yeah, replace "strongly supports its employees" with "forces employees under threat of termination" and it might be more accurate. I don't think for one minute this policy is driven solely by health care costs. Show me a company where the marginal premiums of 20 employees are enough to spur this action, and I'll show you an undercapitalized company. I'm hip...I'm quite sure this is driven by some crusade on the part of Howard Weyers. But I don't care. It's their company, not mine. If senior management has nothing better to do than to go on a smoking witch hunt, I have a hard time getting bent out of shape about it. Forcing me to do so would be, I think, an Intolerable Mandate.

    Posted by John Tant at January 26, 2005 07:26 AM

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    #  March 7th, 2005 6:48 PM      Converted_Comment
    Converted comment: Posted by: Jody at January 26, 2005 07:51 AM

    The easy solution is for the company to decide how much for each employee they are willing to pay for insurance and then have the employee contribute the remaining amount. To dictate what one can or cannot do during non-working hours is extreme, but you are right. It's their company, let them do what they want. If people are truly upset at their hiring practices then they will not enter a business relationship with the company. If they fail to add customers or lose existing customers, then the bottom line will change the policy.

    #  March 7th, 2005 6:48 PM      Converted_Comment
    Converted comment: Posted by: Carlos at January 26, 2005 11:26 AM

    If the employees who were fired had been hired without the company policy being in place (i.e., was it a published policy and were they aware of it?) as apparently they were, then I would think the company has a dual problem on hand: first, the public relations nightmare for them is just beginning. Second, if they thought it would be too expensive retaining those employees because they smoked (maybe), then the lawsuits the dismissed employees should be able to file will make the added cost of premiums peanuts.

    As a business owner, if I hired someone under one set of rules, then changed the rules after the person had worked past probation period, either I would have to get the emplyee to sign off on the new policy or let them continue individually with the old, while all new hires would have to suffer under the new policy.

    Makes sense. Weyco doesn't.

    #  March 7th, 2005 6:48 PM      Converted_Comment
    Converted comment: Posted by: james at January 26, 2005 12:06 PM

    I don't think that's right, Carlos - - of course, this will depend on your state, but absent special circumstances such as a binding legal contract to the contrary or a fiduciary relationship, employment is generally at will, meaning that either party can terminate the arrangement at any time for almost any reason. Even contracts that may appear to the layman be to valid are often found invalid in the employment context - for instance, a contract to employ someone "until they retire" or "for as long as they abide by the rulebook" is (generally) an indefinite term contract that creates no legal obligation for continued employment.

    I say that an employer can fire an employee for "almost" any reason because it's also generally true that you can fire someone for good cause or for no cause, but not for bad cause. (i.e. not in bad faith.)

    Here, the issue becomes one of whether terminating someone for smoking, in an attempt to keep health care costs down, is a termination for bad cause. I'm not sure that it is. Actually, I should say that I just don't know if it is. I was having this conversation with a friend yesterday - neither of us knows the answer, but after discussing it became apparent that it certainly isn't an easy, cut-and-dried topic. I really wish that volokh would write something about it, i'd like to hear what he has to say.

    As an example of some of complexities that come up, look at Jody's solution above - let's say that an employer agrees to pay $400/month for health care for all employees, and that $400 is the number that is the "average" cost of insurance per employee. If it costs more, on average, to insure a woman than it does to insure a man, then more women will end up having to pay out of pocket for health insurance. Do we run into discrimination problems there? I don't know the answer to that either, but if I were someone like the ACLU or NOW, I think I'd make a, pardon the pun, federal case out of it.

    #  March 7th, 2005 6:48 PM      Converted_Comment
    Converted comment: Posted by: John Tant at January 26, 2005 12:11 PM

    Interesting takes. In turn:

    1) The solution Jody puts up is reasonable, but that it doesn't seem to have been offered up by Weyco management tells me they are less interested in saving money and more interested in being a footsoldier for the anti-smoking brigade. I do think it opens a can of worms on the part of Weyco, though. The Libertarian in me says that if Weyco wants to deal with that can of worms, that's their decision.

    2) Re the second comment, I think what's missing in that is the fact that agreements go both ways. Let me illustrate.

    If I have an existing employee base and I want to change a policy, I agree that the employees need to sign off on it. But what if a few don't? Is the employer under an obligation...a legally enforceable continue with that person on the payroll? Or is that an intolerable mandate? Isn't it less intolerable to realize that one of the two parties in the agreement wishes to modify the agreement, and if the other party doesn't agree then they should part company amicably? It isn't like we're talking formal employment contracts here.

    Not being privy to the conditions of employment at Weyco, I can't comment on the merit of any wrongful termination suits. I can only speak generally, and generally (in my opinion) it's more tolerable to have employees find another job than it is to force a private organization to employ them.

    I agree that Weyco's action is El Retardo Supremo. But the issue isn't necessarily if it makes sense or not...the issue as I see it centers around Weyco's right to act irrationally.

    #  March 7th, 2005 6:48 PM      Converted_Comment
    Converted comment: Posted by: Meg at January 26, 2005 12:47 PM

    I too am torn between allowing a private company to do as it wishes versus allowing each person individual freedoms. Plus, I dislike smoking intensely (but that is beside the point). Despite the tension, I side more with the right to individual freedoms.

    This makes me wonder what types of legal remedies are available to the employees of Weyco. Sure, each person could leave and try to find other employment elsewhere. But should someone really have to leave his job simply because of something he does in his free time that the company does not like? Doesn't this Weyco policy and the silent acceptance of it open up the possibility that other things (perhaps pregnancy, getting cancer, having asthma, or eating a diet high in calories and fat) could prompt a company to terminate its employees? Each of these would increase insurance costs for the company as well, which is the reasoning Weyco is using to add validity to its policy. So what is stopping companies from terminating for these potentially expensive practices or conditions?

    Even though equal protection and fundamental rights arguments only truly apply against governmental intrusion, I believe there are statutes where someone could argue that termination for getting pregnant, having asthma, or getting cancer is in bad faith. Is it under the statutes that protect those with disabilities? Isn't there a fundamental right to family in this country under equal protection grounds? And would these statutes/concepts apply to private companies?

    #  March 7th, 2005 6:48 PM      Converted_Comment
    Converted comment: Posted by: james at January 26, 2005 02:52 PM

    it's interesting to note, Meg, that people are often forced to leave their job b/c they do something on their time that the company doesn't like. for instance, a private company can make you submit to regular or random drug tests. you can be fired for smoking pot on the weekend, even if it in no way interferes with your job performance. in that case, it's true that the conduct that you're engaging in is itself illegal. i dont know that it matters, though - i recall that one of the contestants on "the apprentice" last season was fired from her real-life job because she made a comment on television that some viewed as being "racist."

    #  March 7th, 2005 6:48 PM      Converted_Comment
    Converted comment: Posted by: Carlos at January 28, 2005 06:38 PM

    Sorry. I should have explained that I'm from a VERY blue state, one that's been at the forefront of social engineering for decades. I know that when I was hired in the late 70's for a job, it was made clear that, should the rulebook for employees change, it would only be to comply with some new ratchet job from the capitol, to make clear some newly illegal activity would not be acceptable, or with the permission of existing employees. The statement from my new employer was that, since there were so many employees, he was in compliance with state law by giving us that statement.

    #  March 7th, 2005 6:48 PM      Converted_Comment
    Converted comment: Posted by: Harry Mandel at February 13, 2005 09:21 AM

    First off, let me comment that I am a vehement anti-smoker and I would love to see every company
    be completely smoke-free.

    But that being the case, I disagree somewhat with the idea that people are not at all "forced" to work for a company. These people started working for Weyco not knowing that one day they would be fired for something that has nothing to do with their job. And given that it is not usually easy to just quit and instantly find another job right way, the potential financial loss (and perhaps, though less so today than in the past, the "stigma" where it becomes harder to find a job if you have a lengthy employment gaps), I think to some degree some of these people feel "forced".

    But on the other hand, I can understand Weyco's view that it costs a lot more to insure and deal with the medical problems of smokers; as such I think a more just solution would be to make smokers pay more for their company health insurance, etc. There is plenty of legal precedent, life insurance companies do it almost all the time nowadays. And being an "outside" activity wouldn't matter here....if (I know this almost never happens) an employer offered someone discount auto insurance and it didn't involve driving for company business, wouldn't it still be fair to charge the driver with tickets and accidents more?

    Anyway, that's my take on it.




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